Rule 30(b)(6) is an attractive discovery vehicle. The requesting party can avoid the need to guess who, within the corporate framework, has the information desired, as Rule 30(b)(6) puts that burden on the recipient of the deposition notice or subpoena. In the context of eDiscovery, there are two general types of 30(b)(6) witnesses:
- Those seeking general information on the target entity’s computer network and systems; and
- Those seeking information on the ESI Preservation/Collection effort utilized to meet discovery obligations for the instant litigation.
The following is a checklist for selecting and preparing the discovery witness.
Checklist for the 30(b)(6) discovery witness
- Establish a consistent, defined and defendable methodology to manage the identification, collection, processing, review and production of electronic data in a systemized manner.
- Gather appropriate data policies, system profiles and ESI roadmaps.
- Analyze the type of litigation the company is typically involved in and identify individuals who has the requisite knowledge to serve as a potential 30b6 witnesses
- Understand the complete qualifications of the expert i.e. educational background and work experience in regard to the categories of discovery likely to be targeted.
- Understand where in the organization does the witness work, to whom does the deponent report, and who reports to the deponent.
- Understand the impact, if any, of using consultants or outside vendors for maintenance and service of computer systems.
- Consider using outside expert for specific categories of inquiry.
- Understand the roles and responsibility the deponent has in responding to discovery requests seeking production of electronic documents.
- Will this witness be a potential fact witness as well?
- Identify steps taken by deponent to prepare for deposition, including document review.
- Be careful what is shown the witness in order to avoid privilege waiver.
- Have a backup witness plan.
- High Volume, High Risk Cases – Identify Employees with Knowledge and Capability
- IT Organization Chart Organized by Applications
- Desktop Applications
- Database Applications
- Disaster Recovery
- IT Organization Chart Organized by Business Unit
- Create a Roster of Qualified IT Employees: Forensic and Investigatory Experience, Administration of Systems, Management of Data and Records, E-Discovery Processes and Protocols.
- Build redundancy into the process.
- Problem of multi-purpose witness – both a 30(b)(6) and fact witness.
Witness Preparation and Qualifications
Examine witness’ scope of knowledge of communications or legal strategy. Clarify that not holding any privileged information about the case strategy, or Discovery “meet-and-confer” strategy. Get list of anyone he’s spoken with about this, read any memos or email or any communications about it. Find out how to see his emails on this.
- Examine his role in your company’s discovery process, all his various job roles and responsibilities, his background, training, education, job history, confirm no reasons for bias in the instant litigation. What was his role in this matter?
- Examine on a preliminary basis – at a high level — the activities of which he has knowledge – what he has observed, managed, measured, etc. Determine the parameters of his role in this discovery process.
- Who else has been involved in this discovery effort in any way? What are their identities, roles, backgrounds? What was their involvement in this process? Was it unusual that they were involved? Is there a consistent discovery team at your company? Who is part of that team? Were they all involved? If not why not?
- Examine the organization’s structure. To whom does he report? Who reports to you? Same for all members of the discovery team. Describe the structures in the Legal, IT and IT Security departments.
- What did he do to prepare for this deposition prep? What did he look at, etc.?
For either type of 30(b)(6) discovery deposition, the selection and preparation of the designated witness is crucial to the successful defense during deposition.